Communicated on 19 June 2018

FIRST SECTION

Application no. 2827/13 Sylwester SUS against Poland lodged on 24 December 2012

STATEMENT OF FACTS

The applicant, Mr Sylwester Sus, is a Polish national who was born in 1962.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 September 2011 the Krosno Odrzańskie District Court convicted the applicant of counterfeiting of documents and of use of counterfeit documents and sentenced him to one year ’ s imprisonment.

The applicant appealed, claiming that the District Court had failed to take into consideration all relevant circumstances of the case.

On 28 February 2012 the applicant was arrested and detained on remand in connection with other criminal proceedings. The Zielona Góra Regional Court dismissed his appeal against the imposition of detention.

On 9 March 2012 the Zielona Góra Regional Court set the date of the appeal hearing for 16 April 2012. The Zielona Góra Regional Court, apparently unaware of the fact that the applicant remained in detention in connection with another criminal case, sent a summons to the hearing to the applicant ’ s home address.

The appellate hearing took place on 16 April 2012 in the applicant ’ s absence. Relying on Article 133 of the Code of Criminal Procedure (“the Code”, see domestic law below), the Zielona Góra Regional Court held that the applicant had been properly informed of the hearing. On 23 April 2012 the Zielona Góra Regional Court upheld the judgment of 16 September 2011, finding the applicant ’ s appeal manifestly ill-founded. The applicant was not represented by a lawyer during the appellate proceedings.

The applicant lodged a cassation appeal, submitting that he had been deprived of his right to take part in the hearing before the appellate court and to defend himself, in breach of Articles 450 § 3 of the Code (see domestic law below). The Zielona Góra Regional Prosecutor asked for the judgment to be quashed and the case to be remitted for further consideration, since the applicant had not been present at the appeal hearing, in breach of the law.

On 3 July 2013 the Supreme Court dismissed the applicant ’ s cassation appeal. The Supreme Court held that by hearing the case in the absence of the applicant, the Zielona Góra Regional Court had violated Articles 139 § 1 and 450 § 3 of the Code. At the same time, the Supreme Court held that this violation had no significant influence on the challenged judgment. The Supreme Court found in particular that:

- Article 450 § 3 of the Code allowed for conducting the appeal hearing in the absence of the accused, on the condition that the accused was properly informed of the hearing, which did not happen in the case of the applicant, since the summons was sent to his previous place of residence – his home address, but not his actual place of residence;

- however , incorrect service on the applicant of the summons for the appeal hearing and the resulting breach of Article 139 § 1 of the Code, did not constitute an absolute cause for appeal within the meaning of Article 439 § 1 (11) of the Code, leading to an obligatory quashing of the second instance judgment. For this to happen, the applicant would have to prove that the breach of procedure had significant influence on the result of the proceedings, but he failed to do so. During the first-instance proceedings the applicant pleaded guilty as charged and his guilt was proved by means of other evidence, although his short statement included in his appeal, could have suggested that he was willing to provide further testimony with regard to the offence with which he was charged. The circumstances of the case did not show that, even if the applicant had been properly informed about the appeal hearing, he would have applied to attend.

B. Relevant domestic law and practice

1. Code of Criminal Procedure

Article 133 of the Code reads as follows:

Ҥ 1. If the delivery cannot be made in the manner specified in Article 132, a letter sent through the postal operator within the meaning of the Act of 23 November 2012 - Postal Law is left at the nearest post office of this postal operator, and sent in another way to the nearest Police station or the competent municipal office.

§ 2. On leaving a letter under § 1, the deliverer shall place a notice in the correspondence mailbox or on the door of the addressee ’ s flat or other visible place indicating where and when the letter was left and that it must be picked up within 7 days; in case of ineffective expiry of this period, the action of the notification should be repeated once. In the event of such actions, the letter is deemed delivered.”

Article 139 § 1 of the Code, applicable at that time, reads as follows:

“If a party to the proceedings has changed his place of residence and has failed to notify the agency before which the proceedings are pending of his new address, or if he has not resided at a designated address, a document dispatched to the address last designated by such a party shall be deemed duly served.”

Article 439 § 1 (11) of the Code reads as follows:

“Irrespective of the scope of the appeal and the complaints raised therein, and the effect of the breach on the decision, the appellate court shall quash the decisions subject to review if the case was heard in the absence of the applicant, whose presence was compulsory.”

Article 450 § 3 of the Code applicable at that time read as follows:

“The absence of the parties, lawyers or representatives properly informed about the hearing date, does not prevent the hearing from being held, unless their presence is obligatory.”

2. Relevant rulings of the Supreme Court

According to the Supreme Court ’ s case-law, the obligation to inform the court of a new place of residence does not concern detained persons (resolution of 23 May 1974, case no. VI KZP 5/74; judgments of: 26 November 2003, case no. III K K 257/02; 6 July 2006, case no. V KK 495/05; 3 August 2006, case no. III KK 178/06; 22 August 2007, case no. III KK 1/07). A court would be in breach of Articles 139 § 1 and 450 § 3 of the Code even if it is unaware of the applicant ’ s new address.

COMPLAINT

The applicant complains under Article 6 § 3 (c) and (d) of the Convention that he could not defend himself in person before the appellate court.

QUESTION TO THE PARTIES

Were the proceedings before the appellate court in the applicant ’ s case compatible with the requirements of Article 6 §§ 1 and 3 (c) of the Convention? Reference is made to the fact that the applicant was not correctly summoned to the hearing before the appellate court and that the court held a hearing and subsequently gave a judgment in the applicant ’ s absence (see, Belziuk v. Poland , 25 March 1998, § 38, Reports of Judgments and Decisions 1998 ‑ II ).